The Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) has issued a Preliminary Opinion in the Plausibility referral G 2/21. Unsurprising is the EBA’s answer to the first question: post-published evidence should not be disregarded. More thought provoking, however, is the EBA’s answer with respect to when and how to use it (questions two and three): reliance on post-published evidence for establishing inventive step is permitted provided that (1) the technical effect relied upon is encompassed by the technical teaching in the application as filed and embodies the same invention and (2) there are no significant reasons to doubt it; however, if significant doubts exist reliance on the post-published evidence is ‘questionable’.
Of course, at this stage we have just the Preliminary Opinion, which is non-binding, and so close attention needs to be paid to both the Oral Proceedings set to take place on 24 November 2022, and to the ensuing decision which is expected in the first half of 2023. Further updates will be provided as developments occur.